Fox News Scores Big Court Win Against TVEyes

On Tuesday, a federal judge in New York gave Fox News a partial win in an important copyright dispute that could influence the future of the news business.

Fox News has been taking on a media monitoring service called TVEyes, which is probably unfamiliar to most but has been a resource for many well-known journalists, politicians and corporations who wish to track what cable news is saying about a given topic. The cable news network has argued that a company that records some 1,400 television and radio stations and charges customers $500 a month for access to a near real time index of clips — with the ability to share such videos — threatens its revenues and violates its copyrights.

Last September, TVEyes convinced Judge Alvin Hellerstein that the core part of its service relating to indexing and excerpting was protected as a fair use. The judge noted that TVEyes was the only company offering such a comprehensive service and held up its transformative value.

However, the judge wanted more discussion on some of TVEyes' other features. In particular, those relating to letting subscribers download, archive, email and search for clips. And on the verge of today's decision, the controversy led outsiders to file friend-of-the-court briefs including from CNN, NBC and CBS taking Fox News' side despite some evidence they or their reporters were customers for TVEyes.

Judge Hellerstein has now decided that the archiving functions also fall under fair use but expresses concern about its sharing function and rules that features related to downloading and searching by date and time are not covered as fair use.

First the part in favor of TVEyes.

"Democracy works best when public discourse is vibrant and debate thriving," writes the judge. "But debate cannot thrive when the message itself disappears after airing into an abyss. TVEyes' service allows researchers to study Fox News' coverage of an issue and compare it to other news stations; it allows targets of Fox News commentators to learn what is said about them on the network and respond; it allows other media networks to monitor Fox's coverage in order to criticize it. TVEyes helps promote the free exchange of ideas, and its archiving feature aids that purpose."

As far as sharing goes, the judge begins to lean the same way, writing the e-mailing of URL links "allows information to reach the individuals who need to know what is being said in order to engage in news reporting, commentary, criticism, teaching, scholarship, research, and other fair uses permitted by the Copyright Act."

But he adds that TVEyes hasn't yet built in sufficient protections on its sharing function.

"What limits should be placed on subscribers who share links through social media?" the judge asks. "What can prevent subscribers from sharing for purposes not protected by [fair use]? If TVEyes cannot prevent indiscriminate sharing, it risks becoming a substitute for Fox's own website, thereby depriving Fox of advertising revenue."

Worse for TVEyes is the judge's holding on its downloading function.

"TVEyes is transformative because it allows users to search and monitor television news," he writes. "Allowing them also to download unlimited clips to keep forever and distribute freely may be an attractive feature but it is not essential. Downloading also is not sufficiently related to the functions that make TVEyes valuable to the public, and poses undue danger to content-owners' copyrights."

And the judge doesn't think that searching by date and time isn't as publicly valuable as searching by keyword.

"Put simply, if a user wants to watch the first half of last Thursday's O'Reilly Factor, the Court sees no reason why he should not be asked to buy the DVD," he says, adding that allowing customers to find specific time periods of a Fox News show could cannibalize website traffic and licensing.

The case could go to trial on damages, though an appeal seems destined. It will likely be one like the controversy over Google's book-scanning project that would set precedent, and given the continued impact of digital distribution networks, storage capabilities and sharing, it will be a closely watched battle.